Negotiation and Mediation
If there are issues between spouses that remain unresolved, it is always wise to consider mediation or negotiation.
Negotiations almost always occur in family law files.
If litigation arises, settlement proposals or formal Offers to Settle are frequently utilized for the purpose of trying to narrow the gap in the positions between the parties or completely resolve an issue or all of the issues. As long as parties are prepared to negotiate in good faith, the effort is a worthwhile endeavour.
On the other hand, some spouses utilize negotiations simply to prolong a status quo or to try and have the other side spend significant funds regarding negotiation only to abandon the negotiation process. It is important that such circumstances be identified. It is important that one be able to identify the difference between a bona fides negotiation (one done in good faith) in contrast to one entered into with mal fides (bad faith).
Sometimes parties fail to consider whether their case is appropriate for mediation or not. In order for mediation to be considered, there needs to be a number of “ingredients” in place:
The parties must both be acting in good faith;
The parties must both be willing to compromise from their position and have demonstrated this in some way; and
The parties must have similar positions of power in connection with the issues to be resolved.
In the absence of such criteria, mediation is unlikely to succeed.
The Family Law Act and its regulations include the possibility of issuing a Notice to Mediate which requires mediation to take place. Sometimes, the utilization of such a requirement can be strategic and have a positive result.